Boyce and Minister for Immigration and Multicultural and Indigeno Us Affairs
[2003] AATA 849
•29 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 849
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/84
GENERAL ADMINISTRATIVE DIVISION ) Re KIM BOYCE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal D G JARVIS (Deputy President) Date29 August 2003
PlaceAdelaide
Decision
The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the discretion under s501 of the Migration Act 1958 not to refuse the grant of a visa be exercised in favour of Danny William Beasley
DG Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION – subclass 676-tourist (short stay) visa application – character test – whether visa applicant passes the character test – substantial criminal record – discretion that the Tribunal may exercise where the visa applicant fails the character test – primary and other considerations – decision of respondent set aside
Administrative Appeals Tribunal Act 1975 s37
Migration Act 1958 ss 501(1), 501(6), 501(7)
Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1554
Jahnke v Minister for Immigration and Multicultural Affairs 2001 FCA 897
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
REASONS FOR DECISION
29 August 2003 D G JARVIS (Deputy President) 1. This is an application by Ms Kim Boyce for review of a decision of a delegate of the respondent made on 16 January 2003 to refuse a subclass 676-tourist (short stay) visa to the visa applicant, Danny William Beasley (the “visa applicant”). The application by the visa applicant was refused on the grounds that he was found not to have passed the character test within the meaning of s501 of the Migration Act 1958 (the “Act”) and further, the discretion to grant the visa was not exercised in his favour.
2. The applicant was unrepresented. The respondent was represented by Mr T Fell of the Australian Government Solicitor’s Office. The Tribunal received in evidence the documents produced pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the “T documents”). Oral evidence was given by the applicant in person, by the visa applicant by telephone from England and by the applicant’s mother, Ms Norma Elliott, in person.
Background
3. From the documents submitted to the Tribunal and from the oral evidence (which I accept) I make the following findings of fact. The visa applicant was born on 16 December 1968 in London. The applicant, Ms Boyce, was born in Melbourne and moved to Adelaide when she was 12. In 1994, when she was 27, she went to the United Kingdom. She met the visa applicant in the UK in 1995 and later that year entered into a de facto relationship with him. A son, William, whom the parties referred to as “Billy”, was born in February 1998 of the relationship, and he is now aged 5½.
4. In 1999 the relationship between the applicant and the visa applicant ended, and the applicant then returned to Adelaide for a few months. She then went back to London, and remained there until September 2002, living separately and apart from the visa applicant. She then returned to Adelaide and has lived there ever since with Billy.
5. During the period from when the applicant returned to London in 1999 until she left in September 2002, she was Billy’s primary carer, but Billy stayed with the visa applicant on Tuesday and Thursday evenings and on alternate weekends. The applicant worked for a department store in London as a sales manager and subsequently as an assistant buyer, and Billy went to a private childcare centre 5 days a week until he was 3, when he started school full time. After that, the applicant provided childcare assistance for him in the mornings and after school. The cost of childcare initially was of the order of £700 per month until Billy started school, and the cost then reduced to approximately £110 per week.
6. The visa applicant shared Billy’s childcare costs during the period until the applicant returned to Australia in September 2002, and also assisted by purchasing items of clothing for Billy. Since the applicant returned to Australia, the visa applicant has continued to pay maintenance, initially at the rate of £100 per month and more recently at the rate of £200 per month. On occasions he also sends a parcel of clothing for Billy. The applicant was unable to get a job for about 9 months after returning to Australia, and this exacerbated her financial difficulties. However, in May this year she obtained employment and has made a proposal to repay the indebtedness on a personal loan and credit card which she had accrued before she left London.
7. The visa applicant also has another son, Fred, by a previous relationship. He was born on 12 August 1992. On the occasions when Billy stayed with the visa applicant during the period from 1999 until September 2002, the visa applicant also looked after Fred, and a close relationship developed between Billy and his older stepbrother Fred.
8. The reason the applicant left London in September 2002 was that she could not afford to remain there, and she had no family support there. She found it very expensive to live in London, and financially she could not survive; she was in debt and reached a point where she had become depressed and was taking tablets for this. Although it was a hard decision, she found it necessary to leave London even though she realised that this would mean that the visa applicant would have limited contact with Billy. However, Billy speaks to his father once a week by telephone, and the applicant has bought a webcam and microphone, as has the visa applicant, and these are used when making these phone calls.
9. When the applicant left London, the parties intended that Billy would see his father every year, because they would take it in turns to visit each other, and when the applicant went to London, she would take Billy with her to see his father. The visa applicant consented to a passport being issued to Billy to come to Australia in the expectation that this arrangement would ensue.
In December 2002, the visa applicant applied for a visa to visit Australia with his older son, Fred. He purchased aeroplane tickets and it was intended that he and Fred would stay with the applicant in Adelaide for 3 weeks. The visit was planned to coincide with Billy’s 5th birthday in February 2003. It was apparent from her evidence that the applicant, for Billy’s sake, very much wants the visit to proceed to enable Billy to maintain contact with his father.
10. Question 4 of the application for the visa required the visa applicant to disclose whether he had ever been convicted of a crime or offence in any country (including any conviction which had been removed from official records). The visa applicant answered “yes” to this question and when providing further details of this answer he disclosed, in effect, that when he was younger, about 13 years ago, he went to prison for theft, but he had not been in trouble and had a good job for a number of years, he was of good character and just wished to see his son for his birthday. He further disclosed that he had already bought the tickets and wanted to go on the 19th January 2003, and then concluded: “Served 4 months”.
11. A report was subsequently provided by the National Identification Service of London on 30 December 2002, and this revealed that the visa applicant had a significant history of criminal conduct, with court appearances spanning a period of 13 years from 23 April 1981 to 10 August 1994, and involving some 26 offences and 13 convictions. Details of the offences are set out in the T documents, and I will not repeat them in these reasons. However, the offences included a conviction on 3 September 1987 for blackmail, for which the visa applicant was ordered to serve 60 hours of community service. Other convictions included burglary and theft, with custodial sentences for varying periods amounting, in total, to a period greater than 2 years. The applicant said in evidence that he served 12 months of a custodial sentence of 2 years, and was then released for good behaviour.
12. The visa applicant had previously told the applicant that he had been in some trouble when he was young. However, he did not elaborate on this, and was not pressed for further information by the applicant. The applicant said that during the period since she met the visa applicant, he has never been in trouble, and from her observations, she did not expect that he would ever get into trouble in the future.
13. The visa applicant worked for about 5½ years for an antique fireplace company called Chesneys. He started off as a driver and ended up as the yard foreman. His employment involved handling money and he was trusted by his employer to do this. He left Chesneys to go to work for his brother who had his own scaffolding company, but this did not work out and he left his brother’s company after about 3 months. For about the last 4 months he has carried out dry lining and plaster-boarding work. He understands that he will be able to get time off from his present employer to come to Australia for 3 weeks, and will not lose his job as a result.
14. Counsel for the respondent cross-examined the visa applicant in some detail regarding his criminal record. The visa applicant was frank in his responses to this cross-examination. He admitted that he had a substantial criminal record which was serious, and he accepted that his offences were his own fault. He said that he wished he could turn the clock back and that he did not have a criminal history. However, he said that he had not been in trouble since the last recorded offence, and was of good character now. He said that his offences had been committed a long time ago and he now worked hard, paid his taxes and just wanted to come to Australia to see his son.
15. Ms Norma Elliott gave evidence that she went to London for about 3 months in 1996 and stayed with the applicant and the visa applicant. She saw the visa applicant on a regular basis and he appeared to be a good father to Fred and a responsible person. She saw him reasonably often, and he did not appear to do anything which would cause him to be in trouble with the law. She understood that he had been in some trouble when he was younger, but she was impressed that he appeared to have turned his life around. She was also impressed with his subsequent continuing contact with Billy, which she had observed on occasions since the applicant had returned to Australia. She said she was shocked to learn earlier this year of the extent of the criminal record.
The Legislation
16. Under s501 of the Act, the Minister has a discretion to refuse to grant a visa to a person if the person does not satisfy the character test. Section 501 provides relevantly as follows:
“501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(c)having regard to either or both of the following:
(i)the person’s past and present criminal conduct;
(ii)the person’s past and present general conduct;
the person is not of good character; or
…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
…
Definitions
(12)In this section:
…
imprisonment includes any form of punitive detention in a facility or institution;
sentence includes any form of determination of the punishment for an offence.”
Direction No. 21 Issued by the Minister under s499 of the Act
17. The Minister for Immigration and Multicultural and Indigenous Affairs has issued a direction, being Ministerial Direction No. 21, pursuant to s499 of the Act for the guidance of decision-makers in making decisions to refuse a visa under s501.. By virtue of s499(2A) decision-makers must comply with the Direction. Under the Direction, decision-makers must have due regard to the importance placed by the Government on 3 primary considerations, but should also adopt a balancing process which takes into account all relevant considerations (see paragraph 2.2 of the Direction). It is necessary to assess all relevant factors having regard to the facts of the case in question, and the unfettered discretion conferred by s501 of the Act (see Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 and the cases discussed in paragraph 27 of that decision, including in particular Jahnke v Minister for Immigration and Multicultural Affairs 2001 FCA 897). The 3 primary considerations are as follows:
(a)the protection of the Australian community, and the members of the community;
(b) the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
Consideration of the Legislation and Direction and Findings
18. The visa applicant has not satisfied me that he passes the character test because he has a substantial criminal record within the meaning of s501(7) of the Act, and so he does not pass the character test by virtue of s501(6)(a).
19. Nevertheless, I must now determine whether or not to exercise my discretion to refuse to grant the visa, and in exercising this discretion, I am to take into account Ministerial Direction No. 21 as a guide to making my decision. I will therefore consider the relevant considerations in the Direction in turn.
Protection of the Australian Community
20. Counsel for the respondent drew attention to the serious nature of the offences concerned, and in particular to the conviction for blackmail in September 1987. Counsel drew attention to paragraph 2.6(i) of the Direction, which provides in effect that the offence of blackmail is considered by the Government to be very serious. The visa applicant was cross-examined regarding this offence. He said it arose from an incident in a restaurant when he had had too much to drink. He had an argument with a waiter and made a comment about how he wanted a meal once a week for nothing or he and his friends would come back. He said that he had said this as a “bit of a joke”, but acknowledged that the waiter must have felt threatened in order to bring the prosecution and understood that the waiter must have taken what he said seriously. This explanation partly appears from a letter sent by the visa applicant to the senior migration officer on 15 January 2003, and partly from the evidence given in the proceedings before me. I have no other evidence before me as to the circumstances which gave rise to the prosecution and conviction for blackmail, but I note that the penalty imposed was an order for 60 hours community service, and this suggests that the offence was not regarded by the Court as a particularly serious one.
21. The letter from the visa applicant of 15 January 2003 contains his further explanation regarding other offences by the visa applicant, and having regard to this explanation and the comparatively low penalties imposed in the case of some of the offences, it appears that in a number of instances, the courts concerned did not regard the offences as particularly serious.
22. Taking into account that some of the offences (including the blackmail offence) were apparently so regarded, the visa applicant’s contrition for his past criminal conduct and his assurances that that is behind him and he has not been in any trouble for more than 9 years, and also the short period of the proposed visit to Australia, it seems to me that if the visa is granted, there would be little risk of any criminal conduct occurring during this visit. It is pertinent in this regard also that the visa applicant will be travelling with his older son, and the purpose of his visit is to see his younger son and presumably to spend as much time as possible with him.
23. I think it unlikely that a refusal of the visa application in this matter would prevent or discourage similar conduct, so that paragraph 2.5(c) of the Direction should not result in a determination not to exercise my discretion in favour of the visa applicant.
Expectations of the Australian Community
24. Counsel for the respondent referred to paragraph 2.6(c) of the Direction, to the effect that the Government also regards as very serious certain crimes against the Migration Act, including making a false or misleading statement in connection with entry or stay in Australia. He referred in this regard to the misleading statement made by the visa applicant in the original application form. He said that this was a separate matter from his criminal conduct, and an offence under the Act, and a further indication of bad character and should count against an exercise of the discretion to grant the application. He said that this was relevant also to the first primary consideration in the Direction. He referred to the following observations of Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, at 155-156:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”
25. I agree with counsel’s submission that the misleading statement in the visa application is a serious matter, and further, that the Australian community would expect a person with the visa applicant’s criminal history to be refused entry to Australia. However, the circumstances outlined in paragraphs 21 and 22 above are also relevant in my view to this aspect. If these circumstances are taken into account, I consider that the visa application should not be refused under this heading.
Best Interests of the Child
26. Counsel for the respondent pointed out that the parties had taken the decision some time ago that the applicant would reside in Australia with Billy, and they must have known that Billy would then have limited contact with his father. However, I am satisfied that in the circumstances in which the applicant found herself as described in paragraph 8, the applicant had little choice but to leave London and return to Australia where she could receive assistance from her family. Further, the parties intended that Billy would continue to see his father every year because of the proposals that his parents would take turns to visit each other, and Billy has kept in touch with his father as far as possible through regular telephone calls. In addition, because the applicant has only recently been able to obtain work in Australia, she is not in a position at this stage to take Billy to see his father in England, or to meet his father in some third country, as was apparently suggested by the authorities at some stage. In the circumstances, I consider that it would be in the best interests of Billy to keep in touch with his father, particularly in view of the evidence as to the visa applicant’s close and responsible relationship with Billy and his elder son.
Other Considerations
27. The Direction also points out that other matters may be relevant to the exercise of discretion, but these other matters generally must be given less individual weight than given to the primary considerations. A number of other considerations are referred to in paragraph 2.17 of the Direction. Certain of these considerations, in my view, weigh in favour of exercising my discretion in favour of the visa applicant, namely:
· the inability of the applicant to take Billy to see his father in England, as mentioned in paragraph 26 above (and this is relevant to paragraph 2.17(c) of the Direction);
· the evidence of the visa applicant’s rehabilitation and recent good conduct (see paragraph 2.17(h) of the Direction);
· the fact that the application is for a temporary visa, not a permanent visa (see paragraph 2.17(i) of the Direction); and
· the facts that the purpose of the visit to Australia is to enable the visa applicant to maintain contact with his son and to enable Billy to maintain his contact with his older step-brother, and they intend to stay in Australia only for 3 weeks (see paragraph 2.17(j) of the Direction).
Decision
28. The visa applicant’s criminal history and the misleading description of his criminal history in his visa application are matters of very serious concern. However, having regard to the facts of this matter and my conclusions in respect of the considerations referred to in Ministerial Direction No. 21 as outlined above, I have decided that I should exercise my discretion in favour of the visa applicant.
29. I therefore set aside the decision under review and remit the matter to the respondent with a direction that the discretion under s501 of the Act not to refuse the grant of a visa be exercised in favour of the visa applicant.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of
D G JARVIS (Deputy President)
Signed: .......................................................................................
N. Quirke AssociateDate/s of Hearing 12 August 2003
Date of Decision 29 August 2003
Counsel for the Applicant In Person
Solicitor for the Applicant -
Advocate for the Respondent Mr T Fell
0
2
0